Feb 282014
 
 February 28, 2014  Posted by  Court, Surveillance, U.S.

Over on Simple Justice, Scott Greenfield blogged about the Fernandez opinion:

There has been a good deal of moaning over the demise of the 4th Amendment after the Supreme Court’s opinion in Fernandez v. California, where Walter Fernandez’s refusal to allow police to enter his apartment was forgotten after the cops took him away and later returned to obtain the consent of his girlfriend.

Was the rule of Georgia v. Randolph dead? Did “no” no longer mean no if the police shuffled the naysayer from the premises, leaving behind a more consenting occupant?  Not even if there was ample opportunity to get a warrant, the tedium of the effort notwithstanding?

Fernandez isn’t the death of the 4th Amendment, largely because it’s hard to kill something that’s already moribund.  Consent to search is often talked about as an exception to the warrant requirement of the 4th Amendment, but it’s really not. Rather, it’s the absence of invocation of the right protected, the right to be secure in one’s papers and effects.  In analyzing consent to search cases, this distinction matters, because consent ends the inquiry, swiftly, easily and conclusively.  It’s also why the Fernandez opinion went off the rails.

Read more on Simple Justice.

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